John's Valley Foods

National Labor Relations Board - Board Decisions

Aug 11, 1978

237 N.L.R.B. 425 (N.L.R.B. 1978)

JOHN'S VALLEY FOODS
John's Valley Foods, Employer-Petitioner and Retail
Store Employees Union, Local No. 428, AFLCIO.
Case 32-RM-28 (formerly 20-RM 2147)
August 11, 1978
DECISION ON REVIEW
BY MEMBERS JENKINS, MURPHY, \iND TR FI SD\XI
The Regional Director for Region 32 issued a De-
cision and Direction of Election on March 22. 1978,
in the above-entitled proceeding in which he directed
an election among a unit of the Employer's full-time
and part-time employees at its Portola Valley. Cali-
fornia, retail grocery store. In directing the election.
the Regional Director concluded that the Union's
current picketing of the Employer's store in the con-
text of the background evidence manifests a present
demand for recognition and therefore raises a ques-
tion concerning representation. Thereafter. in accor-
dance with Section 102.67 of the National Labor Re-
lations Board's Rules and Regulations. Series 8. as
amended, the Union filed a timely request for review
of the Regional Director's Decision in which it con-
tends, inter alia, that it does not seek to represent the
Employer's employees and that its picketing is infor-
mational and does not evidence a present recogni-
tional objective. The Employer filed an opposition to
the Union's request for review.
By telegraphic order dated April 19, 1978, the Na-
tional Labor Relations Board granted the request for
review and stayed the election directed herein.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including a brief on review filed by the Union
with respect to the issues under review. and makes
the following findings:
The evidence reveals that agents of the Union con-
tacted John Meany, the sole proprietor of the Em-
ployer, on several occasions in May 1977, prior to the
opening of the store, and requested that he enter into
a contract with the Union. Each time. Meanv refused
the Union's request. When the Employer's store
opened for business on June 15. 1977, the Union
commenced picketing. The Employer immediately
filed an election petition in Case 20-RM 2147. An
election was scheduled for July 6. 1977, but several
days prior to that date the Union ceased picketing
and filed a disclaimer of interest. The Employer's pe-
tition was consequently dismissed on July 22. 1977.
and the election was canceled. The Regional Direc-
tor. in dismissing the petition. noted that he would
entertain a motion to reinstate the petition should the
Emplo)er he presented xwith a recognitional claim
within 6 months of the dismissal.
On or about August 8. the Union resumed picket-
ing of the Employer's store using placards containing
area standards language. Itowever, according to
Meany. Louis Menacho, the Union's vice president.
told him that the picketing would continue until a
contract was consummated.' The picketing contin-
ued and on October 21. 1977. the Employer filed a
charge alleging that the Union's picketing violated
Section 8(bh)(7)(C) of the Act. The Regional Director
issued a complaint based on the charge and on De-
cember 16. 1977, the United States District Court for
the Northern District of California enjoined the
Union's picketing. The court's order was subsequent-
ly modified on Januarx 6. 1978, to permit protected
informational picketing.
On January 16. 1978. several days prior to the ter-
mination of the 6-month period imposed by the Re-
gional Director. the Employer filed a motion to rein-
state its election petition. The motion was granted on
January 18 and in late January, presumably after the
petition was reinstated, the Union once again re-
sumed picketing and concurrently distributed leaflets
to consumers specifically disclaiming any recogni-
tional objective.: The Union's placards and leaflets
displayed verbatim language suggested by the district
court and contained in its modified order. Since the
issuance of the December 16 injunction (and its sub-
sequent modification) the l nion's conduct has con-
formed with the court's decree and since that date
there has been no communication between Employer
and the Union concerning the Union's post-injunc-
tive picketing)'
The Regional Director acknowledges that there is
no evidence the Union's conduct subsequent to the
injunction has been inconsistent with either the
court's order or its leaflet disclaimer, and that all
picketing since the issuance of the court's injunction
has conformed to the second proviso of Section
8(b)(7)(C). Nonetheless, the Regional Director con-
cluded that the Union's earlier object of immediate
Ihe t nlion atsserts It, o hIccIle w as neer immediate recognlllon and
that its iniitll picketing as Intended to. puhli e te he mplo,ser's allegedlN
suhstalndaird ,.ages
I)uring this period this matter uas transferred from Region 20. where
the petilion as filed, to Region 32 With respect to the unfair labor practice
complatin issued hb Ihe Regional I)lrector, It i noted that he suhsequenlls
proposed it settlement sshlh was aeprted bh the L nion. hut not the nEm-
ploser Ihe maller ass referred to the Office of the (eneral ( ounsel, and
we haze been adlsed the General (Counsel has approied the proposed unl-
lateral setlemneni arree icnt t that nii appeal hais been filed. and that the
l niol is curreentll in (cmpliince With the agrecm ent
i lestimni\ reseal, the fiial coninmunilatlon between the I nion and the
limplhier I1l;\ hase ,ccurred on O ctober 28, 't77
237 NLRB No. 80
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognition has not been abandoned. Noting that
the Union had ignored an earlier disclaimer, the Re-
gional Director attached little weight to the Union's
leaflet disclaimer. He further determined that the
cessation of picketing for approximately 1 month fol-
lowing the December 16 injunction did not eradicate
the Union's earlier immediate recognitional objec-
tive. We disagree with the conclusions of the Region-
al Director.
Although there is evidence of alleged unlawful
preinjunctive conduct and such evidence undoubted-
ly was the basis for both the Regional Director's is-
suance of a complaint and the district court injunc-
tion, it is equally certain that since the issuance of the
injunction the Union's picketing has been lawful and
in strict compliance with the court's order and modi-
fication. We believe the Regional Director, in arriv-
ing at his decision, relied excessively upon the
Union's pre-injunctive conduct and failed to accord
sufficient weight to the Union's privileged post-in-
junctive activity.
Classic informational picketing may, of course, be
also ultimately recognitional. But such activity, with-
out more, does not evince a present demand for rec-
ognition and if that is all there is, an employer's elec-
tion petition must be dismissed.4 But informational
picketing, in conjunction with other evidence of a
proscriptive nature, can establish a present recogni-
tional objective.5 Such evidence, however, must be
4 Martino (rmnplete Home Furnishings. 145 NlRB 604 (1963).
carefully evaluated because if it precedes a disavowal
of representational interest, it is accorded less weight
than if it accompanies or postdates a disclaimer.6
We believe the Regional Director, although prop-
erly taking into consideration the complete history of
this proceeding, improperly relied on an unsupported
presumption that the recognitional object continued
and failed to consider sufficiently the substantial hia-
tus which followed the injunctive order, as well as the
avowed object of the Union's current picketing, and
the absence of contradictory or equivocal conduct
evincing a present demand for recognition following
the court's order. 7
Accordingly, we find that there is an insufficient
basis to conclude that a present recognitional object
exists which would warrant the direction of an elec-
tion. While we shall continue to evaluate the total
conduct of a union in such situations, notwithstand-
ing disclaimers of representative interest, we shall
also protect the statutory right of labor organizations
to engage in lawful picketing. Accordingly, because
we find that no question concerning representation
currently exists. the Regional Director's decision is
vacated and the petition is dismissed.
Id: Rag nmoti, I S /hweitzer. In, f a Old .4ngus Restaurant, 165 NLRB
675 11967)
Inh lternational BHrlherlid Io Ele truia l(l -rkerv, A I L ( 10 CL(. and irs
IbJal I ion l A 5, 8 rSticinlmet Flectrrcal ( ontractors Associinion. Inc.), 234
NiLRB h33 (19781: (;arzett Prinring (norpans, 175 NLRB 1103 (1969).
RBuldlinl, and ( -ntiru( ion Irade, ( unciil of Philadelphia and VI."ciniv,.
,4tl. (1 ( 41i/molc ( )nrirultrin ('o A. 222 NLRB 1276. 1280 (1976): United
Brotherhoo,d ,,l ( arrpcllrr and Joiners of4 Ameriua. Local No 1245, A FL CIO
(,:Ne tf ri'( Propcrrits), 229 Nl RB 236 (1977)1.
426